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2015 (7) TMI 67 - CESTAT KOLKATA

2015 (7) TMI 67 - CESTAT KOLKATA - TMI - Service tax on vehicle registration charges - Refund rejected as time barred - Unjust enrichment - Held that:- The present refund relates to the period thereafter i.e. from September, 2004 to August, 2007 on the amount of Service Tax paid on vehicle Registration charges for which no demand notice was pending nor it was in dispute before the authority concerned about the payment of service tax. The Appellant had paid Service Tax voluntarily during the said .....

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ed for refund under the Central Excise Act,1944 as applicable to service tax matters by virtue of Sec.83 of the Finance Act, 1994, in view of the observation of the Hon'ble Supreme Court in Mafatlal Industries' case [1996 (12) TMI 50 - SUPREME COURT OF INDIA]. - Decided against the assessee. - Service Tax Appeal Nos. ST/398/2011 - Dated:- 4-3-2015 - D M Misra, Member (J),J. For the Appellant : Sri S Bagaria, Adv. For the Respondent : Sri K Chowdhuri, Supdt. (AR) ORDER Per: D M Misra: This is an .....

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y dropped the demand of Service Tax of ₹ 97,416/- on this count vide order-in-Original No. 05/S/Tax/Jt. Commissioner/2007 dated-20/12/2007. 3. Thereafter, the present refund claim for ₹ 1,97,913/-was filed on 24/12/2008 on the ground that the Service Tax paid on registration charges for the period 1/9/2004 to 30/9/2007 by the appellant is bad in law, hence refund of the Service Tax should be allowed to them. The refund was sanctioned to them by the adjudicating authority. While setti .....

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the ground of unjust enrichment. 4. The Ld. Advocate Shri S. Bagaria for the appellant submits that since the registration charges collected by the applicant in getting the vehicles registered with the District Transport office do not fall under the category of Business Auxiliary Services as held by the Jt. Commissioner in the adjudication order dated 26/12/2007, therefore, amount of Service Tax collected between September, 2004 to September, 2007, ought to be refunded. He submits that the dema .....

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Department has no authority to retain the said amount and should refund such amount as the same cannot be called as duty of excise. In support he has referred to the judgment of the Hon'ble Karnataka High Court in the case of CCE Vs. KVR Construction reported in 2012 (26) STR 195 (Kar.) and Shraban Banarasilal Jejani Vs. CCE -2014 (35) STR 587 (Tri-Mum). Further, countering the observation that the refund is hit by unjust enrichment, he has submitted that the charges recovered from the custo .....

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m is not covered by the order of the Jt. Commissioner dated 26/12/2007. It is his submission that the present refund cannot be construed as a refund consequent of a judgment, degree, order or direction of Appellate Authority, Appellate Tribunal or any Court. He has submitted that since the issue of refund relates to collection of service tax under the Finance Act,1994 and the provisions of the law has not been declared ultra vires therefore, in view of the decision of the constitution Bench in M .....

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e Jt. Commissioner has observed that the Service Tax is not payable on vehicle registration charges collected by the appellant from the customers and accordingly dropped the demand of ₹ 97,416/- for the period from July, 2003 to August, 2004. The present refund relates to the period thereafter i.e. from September, 2004 to August, 2007 on the amount of Service Tax paid on vehicle Registration charges for which no demand notice was pending nor it was in dispute before the authority concerned .....

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ion 11B(5) of CEA, 1944, which reads as: "[Explanation. - For the purposes of this section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the (B) "relevant date" means, - [(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;] 7. I als .....

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of the Hon'ble Supreme Court in Mafatlal Industries' case (supra) which reads as: 99.The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i) Where a refund of tax/duty is claimed on the ground that i .....

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be preferred under and in accordance with the provisions of the respective enactment before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and .....

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e 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self-contained enactments providing for levy, assessment, recovery and refund of duties, imposed thereunder . Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are .....

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